Rajagopala Ayyangar, J.
1. These three appeals have been filed by the firm of Kandaswami Gounder and Brothers (whom we shall refer to as 'assessees'), who have been assessed to sales tax, under Section 12-C of the Madras General Sales Tax Act against the orders of the Board of Revenue passed under Section 12(3) of the said Act. A preliminary objection was taken to the maintainability of these appeals, a matter which we shall consider a little later; and in view of this objection, three civil miscellaneous petitions have been filed to convert these appeals into revisions invoking our jurisdiction under Article 227 of the Constitution.
2. A few facts are necessary to understand first the preliminary objection to the maintainability of the appeals which we are upholding and also the points that arise for consideration in the revisions under Article 227.
3. The assessees (the appellants in these appeals and the petitioners in these Civil Miscellaneous Petitions) K.V. Kandaswami Gounder and Brothers were a firm carrying on business as dealers in fibre, coir and rope, the place of business being at Salem junction with a factory and godown at Alagasamudram. For the assessment year 1947-48 the assessment of the assessees was duly completed on the basis of a turnover of Rs. 30,300 accepting the returns submitted by them by an assessment order dated 6th October, 1948. For the next year 1948-49 the assessees submitted a return in a form showing a net turnover of Rs. 23,109-13-11. Before this assessment was completed, the Deputy Commercial Tax Officer, Salem, conducted surprise inspection of the assessees' factory and godown on I5th March, 1950, at Alagasamudram and seized a number of account books which pertained to the years 1945-46 to 1948-49. The entries in these accounts did not tally with the accounts on the basis of which the A form returns had been furnished. After these accounts were seized and examined, notices were issued to the assessees on 20th March, 1950, (1) to show cause why the final assessment made for the assessment year 1947-48 which had already been completed should not be revised and (2) why the A form return submitted for 1948-49 should not be disregarded and the turnover determined on the basis of the transactions as disclosed in the accounts seized. No satisfactory explanation was offered to these notices, and the Deputy Commercial Tax Officer accordingly gave effect to what he proposed to do in the notices issued on 20th March, 1950. These assessment orders were dated 27th March, 1950, and by virtue of these the assessment for the year 1947-48 was revised on the basis of a turnover of Rs. 94,792-8-11 and that for the succeeding year was computed at Rs. 1,51,300. The appropriate tax due on this turnover was calculated and a demand was made for the payment of these sums. The assessees filed an appeal before the Commercial Tax Officer and in their grounds they put forward the contention that the account books seized at the surprise inspection and check on 15th March, 1950, did not pertain to their business but had been planted in the place, wherefrom they were seized, by their enemies. The Commercial Tax Officer, Salem, who heard these appeals dismissed them by orders dated 22nd November, 1950. This appellate authority pointed out that the case put forward before him disclaiming the ownership of the account books was an afterthought, and treating the seized books as reflecting the transactions of the assessee-firm he held that the turnover computed for the two years by the Deputy Commercial Tax Officer was correct. Against the order of the Commercial Tax Officer the assessees preferred revision petitions to the Deputy Commissioner of Commercial Taxes, Coimbatore division. The revision in relation to 1947-48 was disposed of on I2th December, 1951, and that in relation to the succeeding year on 22nd February, 1952. Both the petitions were dismissed. Against the orders of the Deputy Commissioner the assessees had an option to prefer appeals either to the Sales Tax Appellate Tribunal under Section I2-A or to apply in revision to the Board of Revenue under Section 12 (3). They chose the latter alternative and sought relief at the hands of the Board of Revenue. The Board of Revenue passed orders on 16th December, 1952, and 19th January, 1953, dismissing both the revisions. Appeal No. 356 of 1953 is directed against the order of the Board dated 19th January, 1953, in relation to the assessment year 1947-48 while Appeal No. 213 of 1953 is against the order in relation to the assessment year 1948-49.
4. To complete the narrative we shall set out the facts in relation to Appeal No. 357 of 1953. For the assessment year 1949-50 the assessees disclosed in their A form return a turnover of Rs. 32,788-0-11. The Deputy Commercial Tax Officer called upon the assessees by notice dated 27th March, 1951, to show cause why the accounts on the basis of which the turnover return was computed should not be rejected and why the turnover should not be estimated at Rs. 62,000. This figure was arrived at by computing the turnover taking into account the seized account books and adding to the transactions disclosed those which had been suppressed but which were found entered in the seized books. Except denying the ownership of the account books the assessees offered no other acceptable explanation and when this contention was rejected the assessing authority estimated the turnover at the figure indicated in his notice. There was again an appeal to the Commercial Tax Officer and the same process of appeal and revision in the same manner as regards the previous years was gone through in regard to this assessment also. From the final order of the Board of Revenue rejecting the revisions under Section 12 (3) of the Act, Appeal No. 357 of 1953 has been filed.
5. When the appeals were opened, the learned Assistant Government Pleader raised a preliminary objection to their maintainability based upon the terms of Section I2-C (1) of the Madras General Sales Tax Act. To understand this objection it is necessary to advert to Section 12 (3) of the Act under which the assessees invoked the revisional jurisdiction of the Board of Revenue. That provision runs thus :
Section 12 (3)-The Board of Revenue may
(i) suo motu, or
(ii) in respect of any order passed or proceeding recorded by the Deputy Commissioner under Sub-section (2) or any other provision of this Act and against which no appeal has been preferred to the Appellate Tribunal under Section I2-A on application, call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by any officer subordinate to it, for the purpose of satisfying itself as to the legality or propriety of such order, or as to the regularity of such proceeding, and may pass such order with respect thereto as it thinks fit.
6. The material portion of Section 12-C(1) under which these three appeals have been preferred to this Court runs thus:
12-C(1)-Any assessee objecting to an order relating to assessment passed by the Board of Revenue suo motu under Section 12, Subsection (3), may appeal to the High Court within sixty days from the date on which the order was communicated to him.
7. The point raised by the learned Assistant Government Pleader was that an appeal lay to this Court under Section I2-C (i) only where the Board of Revenue acted suo motu under Section 12 (3) and not in cases where the Board of Revenue did not act suo motu but where its revisional jurisdiction was invoked by an application preferred by a party. He pointed out. that from the order of the Deputy Commissioner of Commercial Taxes, the assessee could elect either to appeal to the Sales Tax Appellate Tribunal and then apply to this Court in revision under Section I2-B, or to invoke the revisional jurisdiction of the Board of Revenue, in which case that order would attain finality without an appeal lying to this Court under Section 12-C(1). In our judgment, this contention is well founded and the preliminary objection has to be upheld. Section 12 (3) divides the manner in which the revisional proceeding can come up before the Board of Revenue into two distinct heads distinguishing them by two sub-clauses. Sub-clause (i) enables the Board by itself, without reference to a party, to take cognizance of orders passed by subordinate authorities and to exercise revisional jurisdiction over them. Sub-clause (ii) contains another mode in which this revisional jurisdiction could be brought into operation and this is by an application by a party. The latter sub-section makes it clear that the remedy by way of revision to the Board, which an assessee might invoke, is an alternative to the remedy by way of appeal under Section I2-A. When we come to Section I2-C (1) it is found that it specifically enumerates 'orders of the Board passed suo motu' from among the orders passed by it under Section 12 (3) as those in regard to which appeals lie to this Court under that provision. It is therefore clear that an appeal lies to this Court under Section 12-C(1) only in those cases where the matter has been taken up by the Board suo motu and that cases where an assessee has invoked the Board's revisional jurisdiction under Section 12 (3) (ii) are not within the class of orders against which appeals lie under Section 12-C(1).
8. Mr. Kesava Aiyangar, learned counsel for the appellants, however urged before us that we should adopt a liberal construction of a provision which enables an appeal to be filed and read Section 12-C(1) as including every case where the revisional jurisdiction of the Board had been exercised under Section 12 (3). Learned counsel pointed out that, though under Section 12 (3) the mode in which the revisional jurisdiction of the Board could be invoked was divided into two clauses, designated respectively by different numerals, still Section I2-C (1) had not stated 'under Section 12 (3) (1)' but had referred to the entire Sub-section (3). We feel wholly unable to follow this argument. The construction contended for by learned counsel would in effect delete the words 'suo motu' used in Section I2-C (1) and unless this were done, the result which counsel seeks to achieve cannot be reached. We cannot consider the expression 'suo motu' as superfluous, since it obviously refers us back to the terms of Section 12 (3)(1) from where it has obviously been taken. We have therefore no hesitation in holding that Section I2-C (1) does not enable an appeal to be filed from orders of revision passed by the Board where the assessee has invoked its revisional jurisdiction by an application under Section I2(3)(ii).
9. The further contention of learned counsel was that it was against an order of revision passed by the Board that an appeal is provided for under Section 12-C (1) and that as the order would be the same and would be arrived at by the same process of reasoning, however the proceedings be initiated, we should hold that the terms of Section I2-C (1) were satisfied. This is merely a re-statement of a contention which we have already rejected and does not require independent consideration.
10. We therefore hold that the appeals are incompetent.
11. After the arguments on the preliminary objection, learned counsel for the appellants filed the C.M. Ps. we have referred to above, to convert these appeals into revisions under Article 227 of the Constitution in case we were to uphold the preliminary objection. In view of our upholding the preliminary objection we consider that in the interests of justice we should permit the conversion so as to enable the assessees to satisfy us that there was no material on the record on the basis of which the assessment orders could be sustained. We are impressed by the fact that the construction of Section I2-C (1) comes up before us for the first time. But in view of the assessees seeking our indulgence and taking into account the delay in filing the petition we consider that this should be permitted only on terms of the petitioner paying costs to the respondent and this we fix at Rs. 150.
12. Learned counsel realised the precise scope of our jurisdiction under Article 227 and he accordingly took us through records in an effort to show that there was no material on which the assessment orders could be sustained.
13. As we have already indicated, the main burden of the assessees' case was that the account books which were seized on 15th March, 1950, by the Deputy Commercial Tax Officer, Salem, did not belong to them. Before the Deputy Commercial Tax Officer who effected the reassessment for the year 1947-48 and the assessment for 1948-49 the point as regards the ownership of the account books was not raised. It was however formulated before the Commercial Tax Officer in their grounds of appeal to him. The Commercial Tax Officer took evidence on the point and it was after considering this evidence that he reached a conclusion adverse to the assessees. In regard to this matter Mr. Kesava Aiyangar made two submissions: (1) that the books had been recovered from a building which was occupied in part by a co-operative society and that the place or room wherefrom these account books were recovered was one which was not in the exclusive possession of the assessees, but that on the other hand other people had access to it, and (2) that the account books themselves contained transactions which could not be real, that there was therefore sufficient internal evidence furnished by the books themselves which would militate against their being a record of genuine transactions.
14. We shall consider these two objections in that order. The fact is as regards the ownership of the books based upon their having been recovered from a place not in the exclusive possession of the assessees, we are clearly of the opinion that this objection was an afterthought. It was not formulated in the grounds of appeal to the Commercial Tax Officer, though it was sought to be made out when it came to adducing oral evidence before this appellate authority. This apart, when the account books were seized on 15th March, 1950, one of the partners K.V. Kandaswami Gounder was present. A statement was recorded from him on the same date and at the time of the seizure, in which it was distinctly stated that the account books, which were bundled up and sealed with the seal of the Deputy Commercial Tax Officer and of the assessees, pertained to his coir and rope business. At that time, the Deputy Commercial Tax Officer demanded from Kandaswami Gounder the account books kept at Salem, and he stated that his partner had taken these account books with him and they would be made available the next day. The assessees were also intimated-and this is made a part of the statement recorded on 15th March, 1950-that the seized books would be examined the next day at the office of the Deputy Commercial Tax Officer at 2 p.m. On 16th March, 1950, Kandaswami Gounder appeared at the office of the Deputy Commercial Tax Officer at the hour named. The seals were examined and were found intact and a statement to that effect was recorded on that day (16th March, 1950). An inventory was prepared of the books and these were numbered 1 to 17. A number of miscellaneous papers-receipts, vouchers etc.-were also bundled up and the bundle was given the number 18. Kandaswami promised to bring the books of the head office and make them available to the Deputy Commercial Tax Officer on 20th March, 1950. In this statement also, which was signed by Kandaswami, there is no whisper that the account books seized which were described in the inventory by reference to the dates of the transactions and the number of pages contained in each book were not those belonging to the firm or pertaining to their coir or rope business. In our opinion, these two statements recorded on 15th March, 1950, and 16th March, 1950, are admissions that the seized books did belong to the assessees. If this were so, the question is whether the evidence subsequently adduced disputing this ownership could be believed. To put it slightly differently could we say that there was no material on record to support the finding, that these books pertained to the business of the assessees, in the face of the admissions contained in these statements This question can be answered only in one way and that is that the admission constituted sufficient-and we would add satisfactory- material on the basis of which the finding against the assessees could be sustained.
15. We have already pointed out that the story that the books were recovered from a place to which other people had access was clearly an afterthought. Learned counsel urged before us that there was evidence of respectable witnesses to speak to it. In these petitions under Article 227 we do not find it necessary to canvass the credibility of this evidence ; but if this theory was an afterthought, this evidence has necessarily to be rejected as we have no sufficient explanation as to why this fact was not stated at the time of the seizure or even in the grounds of appeal. This is particularly so because, as we have stated earlier, the partner of the assessee firm who was present at the time of the seizure admitted that the books pertained to his business.
16. The other objection urged by learned counsel was that there were entries in the account books which showed that the accounts could not reflect genuine transactions. This was rested upon the fact, that there is a reference to a transaction of one Rangan, son of Vyapuri Gounder, during the year 1948, whereas the said person died on 26th September, 1945 ; and a death extract was produced in relation to his death. The Commercial Tax Officer rejected this contention by saying that there was no proof that there was no other person by name Rangan who could have entered into this transaction. But this apart, if, as we hold that the account books did pertain to the assessees' business, it was for them to have explained how this transaction came to be entered into and the identity of the Rangan with whom the transaction of 1948 was entered into. It cannot be that the assessees made entries merely for the fun of it. That at least was not their explanation. In the absence of any evidence on their part, the assessing and the appellate authorities were in our opinion justified in holding that the transactions were genuine.
17. We see therefore no basis on which the assessees could successfully invoke our jurisdiction to interfere under Article 227 with the order of the tax authorities.
18. The last of the contentions urged was that the seized accounts did not cover the entire period of assessment for the three years, and that the authorities erred in computing the turnover for the periods not covered by the seized books by attributing to such periods a proportionate addition to the turnover. We do not see any error of jurisdiction in following this procedure either. There had certainly been a suppression by the assessees in the regular books maintained by them, of some of the transactions entered into, as would be clear from the entries in the seized books. The regular account books produced could not therefore be relied upon as representing all their turnover. There had to be an estimate of the suppressed dealings. We do not see any error in law or any failure of justice in the process adopted by the taxing authorities in treating the assessees to have pursued a uniform course of conduct of suppressing the same proportion of the turnover. In any event the assessees cannot have any complaint because they had not produced to the tax authorities the books which would have contained the suppressed transactions. We see therefore no substance in the last of the arguments urged and we reject it.
19. The result is that these petitions also fail and are dismissed with costs in one. (Counsel's fee Rs. 100).